Polanski's Lost Alibi

A retired L.A. prosecutor—the man at the center of the Polanski judicial misconduct allegations—now tells Marcia Clark that he lied to documentarians, undercutting the director’s defense. Among the developments Clark finds:

• Polanski’s grounds for dismissal center around the former prosecutor inappropriately advising the judge about how to send Polanski back to prison. But the former prosecutor, David Wells, now tells Clark that “I lied” in the movie about advising the judge, and that “it never happened,” which could undermine the director’s case for dismissal.

• Wells’ excuse for lying in the movie? “The director of the documentary told me it would never air in the States. I thought it made a better story if I said I’d told the judge what to do.”

• Wells confirms to Clark that he did supply the judge pictures of Polanski reveling at Oktoberfest, and says that it’s these photos that prompted the judge in 1977 to reconsider the plea bargain.

• Law-enforcement sources confirm that the strident actions of Polanski’s own lawyers—prompted by Wells’ now-recanted statements in the movie—led to his arrest this weekend.

David Wells is the former prosecutor at the center of the Roman Polanski case—I knew him well back in the day. What he told the director of the 2008 documentary Roman Polanski: Wanted and Desired—that he advised the judge in the case how to elegantly send Polanski to prison—gave Polanski’s lawyers an opening to try to dismiss the case last year, setting off a collision with the district attorney’s office. The result? Polanski now sits in a Swiss jail.

“I lied. I know I shouldn’t have done it, but I did. The director of the documentary told me it would never air in the States. I thought it made a better story if I said I’d told the judge what to do.”

I just spoke to Wells—and what he told me is going to make things worse for Polanski.

“I lied,” Wells told me yesterday, referring to his comments in the movie that he told the judge how he could renege on a plea-bargain agreement and send Polanski back to jail after he had been released from a 42-day psychiatric evalation—the heart of Polanski’s claims of prosecutorial and judicial misconduct. “I know I shouldn’t have done it, but I did. The director of the documentary told me it would never air in the States. I thought it made a better story if I said I’d told the judge what to do.”

• Thaddeus Russell: How Young Is Too Young?• Robert Goolrick: Polanski’s Victim and Me• Read full coverage of the Polanski scandalRecanting these statements is a bombshell. Especially because it was Wells’ comments in the movie that directly led to the international legal showdown we’re now facing. After Polanski’s lawyers filed their motion last winter, the DA’s office had to do something. Granted, at first the “something” was a confusing, muddled mess. The office initially denied that there’d been misconduct when the case was originally prosecuted; then, faced with Wells’ statements in the documentary, it withdrew that statement. But privately, after many aborted efforts over the years, it dusted off the arrest warrant and nabbed the guy. Law-enforcement sources have acknowledged that Polanski has his own lawyers and their strident motions to thank for finally landing him behind bars.

So what really went down in the chambers of publicity-hungry Judge Laurence Rittenband back in 1977? “All that happened was I brought the newspaper with the picture of Polanski at Oktoberfest [before his 42-day evaluation] into court and handed it to the bailiff,” Wells told me. “I told the bailiff, ‘Here, give this to the judge.’ Did I know it would tick him off? Yeah. It ticked me off. Polanski was thumbing his nose at everyone.”

“When [Judge] Rittenband saw the photograph of Polanski out on the town…he blew up. Said, ‘Screw the deal, he’s going to state prison.’ And he said it straight to a reporter from The Outlook. Polanski’s lawyer found out about it, of course. And that was that. He never showed up for sentencing.”

So he didn’t advise him on a strategy for how to send Polanski back for more prison—a clear ethical violation—after all parties, including Judge Rittenband himself, had ostensibly agreed to let the 42 days suffice? “No. It never happened,” he said flatly.

I believe him. It’s absolutely forbidden to have one-sided communications with a judge about a pending case. I once knew Wells—rather well, actually. He was a brilliant lawyer, a great raconteur, and he had a wicked sense of humor—but unethical? Hardly.

In the documentary, Wells said he’d never thought Polanski got enough of a sentence for raping a 13-year-old girl. And if anyone knew what Polanski had done, it was Wells. He’d been the one who first caught the case, and he’d interviewed the victim, her mother, her brother, and Polanski himself. Because that kind of involvement would have made him a witness if the case went to trial (which lawyers, and especially prosecutors must avoid), Wells was taken off the case and Roger Gunson was assigned. According to Wells, the switch rankled, “but I got it—they did the right thing, I just think they should’ve left me on as co-counsel. Hell, no one knew the case better than I did.”

A plea bargain was worked out, allowing Polanski to go into state prison for “90-day diagnostic testing.” Back in those days, it was fairly common to let a defendant plead guilty to a lesser charge and have him go in for that diagnostic—a series of psychological tests, and a thorough background check—and if the prison didn’t recommend any further time, the judge would abide by that recommendation. “It’s likely Judge Rittenband agreed to abide by the recommendation and give Polanski no additional time after he finished his diagnostic,” Wells said. “What he probably didn’t count on was that Polanski would promise to put everyone in the prison in his next movie and basically charm his way out of there in just 42 days.”

Although there’d been grumblings about the wrist slap of a sentence, Wells said, “You have to remember, this was the ’70s. People had a different state of mind about sex crimes back then. They were asking what the girl was doing at his house to begin with, talking about how she wasn’t a virgin anyway. I said, ‘What difference did it make? She was a child, just 13 years old. Who cares what she’d done before?’”

• Mark Geragos & Pat Harris: The Polanski Endgame• Gerald Posner: Polanski's Next EscapeThose were the days when folks still believed rape was “easy to charge and hard to disprove.” And that old adage couldn’t have been further from the truth. Prosecutors well knew that unless the victim was Snow White, the case was toast. All too often, the victim got put through the shredder at trial, framed up as the “slut” who “deserved” it, only to wind up hearing the jury say “not guilty.” And the victims felt they’d gone through all that misery for nothing.

“Even so, knowing what he’d done, I thought that letting him plead to statutory rape was nothing. I wouldn’t have given him that deal,” Wells said.

Polanski’s lawyers will surely ask him that, and more, when and if the director returns. Wells is bound to have to come into court, raise his right hand, and admit he lied. “I’m going to have to eat crow,” he told me. “I know that. And I will. I know how it sounds, that I’m willing to lie about talking to Judge Rittenband, but I didn’t do anything unethical. But it’s the truth.”

“Look, after 30 years, I never thought they’d get the guy back here,” Wells continued. “I figured no one cared anymore, and no one here would ever see the film anyway. What can I say? I don’t have a better reason than that. It seemed like a good idea at the time.” Knowing Wells, I wouldn’t have put it past him to have lied in the movie just to stir the pot, and get the case moving in some direction again, which was certainly accomplished.

Now the magic act begins for Polanski’s lawyers. Because unless they can bend bars the way Uri Geller bends spoons, the director will soon end his 30-year exile and appear once again in a U.S. courtroom. His lawyers will then have to show why a rape case should disappear.

Wells’ repudiation hurts them big-time. It’s the equivalent of “I’m a liar and everything I say is a lie.” By discrediting himself, he largely negates his value to Polanski. For the record, if he really did make those suggestions to the judge, I wouldn’t put it past him to fall on his sword, say he lied, and save the case. But if that’s true, and I don’t think it is, it was also unnecessary. A judge would be highly unlikely to throw out the rape case even if David Wells had spoken privately to Rittenband. An ex parte communication generally wouldn’t justify dismissal of a violent felony anyway. And for this kind of communication? Forget about it.

But if there was a plea bargain in place stating that the judge would abide by the prison recommendation, and we know that the prison recommended no more time, what could the judge do? “Legally? That never mattered a whole heck of a lot to Judge Rittenband. If he wanted out of the deal and wanted Polanski to get state prison time, he’d just do it,” Wells replied.

There’s no question that Judge Rittenband couldn’t legally have imposed more time after agreeing to abide by the state prison recommendation. And don’t forget, Polanski wasn’t alone in that courtroom, he had a lawyer—a damn good one. “[Douglas] Dalton was a great lawyer. He wouldn’t have just stood there and let his client get hauled off to prison,” Wells said.

But Polanski wasn’t willing to risk any time waiting in prison while his lawyer figured it out. No doubt, any improper sentence would’ve been set aside, but that doesn’t mean Polanski would get the benefit of his bargain, either. Generally speaking, a judge is never bound to accept a plea bargain he doesn’t approve of. Judge Rittenband could legally have let Polanski withdraw his plea and either set the case for trial or set new terms for the plea bargain and see if Polanski would accept them. If the director had agreed to do more time, it certainly wouldn’t have been because he thought he deserved it. His statements both then and now show he doesn’t think what he did was any big deal. According to him, “no one got hurt.”

I beg to differ. But don’t take my word for it. If you want to know what it’s all about, read Samantha Geimer’s testimony before the grand jury. See what you think.

So what happens next?

Assuming Polanski loses his fight to resist extradition, he’ll be back in court—and not “just” for the rape. He now could be charged with failing to appear in court. It’s a slam-dunk of a charge in this case, and it carries a potential sentence of three years in state prison. If it’s proven that Judge Rittenband intended to violate the plea bargain, it’ll make Polanski’s flight understandable, but it won’t make it legal. Nevertheless, the defense will most certainly play this card for maximum advantage to show why Polanski shouldn’t be punished for having fled before the sentencing.

There is some talk that the defense might ask to withdraw the plea on the rape charge and go to trial, but I very much doubt that will happen. Polanski’s looking at a long fall if the case gets pulled together.

That doesn’t mean it’s all over, though. The DA’s office could ask to withdraw from the plea bargain on the rape because Polanski violated the terms of the deal when he fled the country. The defense could try to block that by claiming that Polanski only fled because the judge was going to give him an unfair sentence, but that argument’s probably a nonstarter.

If the plea was withdrawn, could the DA’s office pull the case together after all this time? Probably. First of all, even though Geimer said she didn’t want Polanski to do any more time, I wouldn’t discount the possibility that she’d show up to testify at trial. But even if she didn’t, lots of other evidence is out there: Geimer’s spontaneous statements to others about the rape, the observations of the nurses and doctors who examined her, and Polanski’s admissions to friends, family, and others would come in. Bottom line, there’s a case that can be made even without the victim—and without Polanski’s guilty plea.

And if this case does go to trial, Polanski might find himself wishing he’d gotten it into court back in 1977. Because Wells was certainly right. The ’70s are long gone, and today people see rape for the crime it is.

Marcia Clark, the former L.A. district attorney who prosecuted the O.J. Simpson murder case, has since served a regular legal television commentator. She has written a bestselling book, Without a Doubt, served as a columnist for Justice Magazine and is finishing her debut crime novel.